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Some administrative law, workers’ comp cases slowed by virus response

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GavelWorkers’ compensation mediations and administrative law motion hearings are proceeding about normally but some other operations from the state’s Division of Administrative Hearings — particularly those requiring in-person hearings — have been affected by the COVID-19 pandemic.

Administrative Law Chief Judge John MacIver has issued three administrative orders (available on the DOAH homepage at www.doah.state.fl.us/ALJ/) setting procedures for handing administrative law and workers’ compensation cases during the crisis. The latest extends the emergency provisions through April 30.

“Our offices are open, but I’m trying to keep crowds absolutely to their minimum consistent with the governor’s order [limiting travel and nonessential business and government operations],” MacIver said. “Most of the administrative law judges are working from home and the staff rotates in and out of the office. The judges of compensation claims district offices remain open, except for Miami and Ft. Pierce, which are closed to the public.”

While the administrative orders keep the Tallahassee DOAH office open, all hearings away from Tallahassee where telephone or video use would be impractical have been continued until Gov. Ron DeSantis’ order limiting travel in the state expires. Administrative law judges have been directed to use telephone or video conferencing as much as possible.

“Judges of Compensation Claims have been directed to use their discretion in the management of their dockets,” according to the orders. “All mediations for the Offices of the Judges of Compensation Claims will be conducted telephonically.…”

The requirement for “sworn” statements that all child support obligations have been disclosed as part of workers’ comp settlements as required in Florida Administrative Code Rule 60Q-6.123 has been suspended although those signing the documents could be charged with a second degree misdemeanor under Florida laws if they make a false written statement to a public servant.

Anyone concerned about their ability to appear at a live hearing must communicate that to judges of compensation claims or administrative law judges and the judges “are directed to provide the greatest deference possible to parties requiring individual accommodations,” according to the orders.

Special efforts have been made to deal with child support cases, MacIver said, using telephone hearings and online Zoom meetings “so the dockets don’t overwhelm us and people who need to be heard are heard.”

With many judges and staff working at home, MacIver said he’s trying to ensure everybody is working in the safest way they possible can, and preferably from home.

“I hear a lot of frustration. Most of them don’t like working from home. It’s an isolated experience without the camaraderie of coming to the office and the ability to have parties appear in front you,” MacIver said. “But I think they all recognize how lucky we are that we’re still working.”

Tallahassee administrative law practitioner Edward Lombard is also working from home and said many types of administrative procedures are being continued.

“They hold video hearings all the time, it’s not necessarily something new for DOAH,” he said. “At DOAH, motion practice, even on the complex cases, is always done by phone. It’s a space issue. They don’t have enough rooms over there. Discovery motions are always done on the phone.”

In person matters can be different.

“We’ve got a final hearing, which is the equivalent of a trial. We did two days and were scheduled to come back the next week and never did because of the COVID situation,” Lombard said.

The case is a challenge to a public agency bidding process and involves the petitioner, respondent, and an intervenor. The latter two were amenable using Zoom to finish, but the petitioner was not.

“We had a Zoom hearing to determine whether we should continue the final hearing via Zoom or some other online platform,” Lombard said. “The judge decided to push it off for another month or so and see where we are.”

It’s particularly frustrating, he said. because such bid challenges are usually handled quickly, adding, “It’s going to be most challenging over the next several weeks or month or two on the complex cases where there are lots of witnesses and exhibits.”

So far the administrative law side of his practice hasn’t been affected much, Lombard said, but he also does commercial litigation work and he’s beginning to see inquiries about delayed, financially imperiled, or canceled construction projects.

“We’re all working remotely, assistants and lawyers and paralegals. It’s a challenge all trying to be patient with each other and patient with the situation,” Lombard said. “Hopefully this all resolves quickly so we can get back to what we’re used to.”

Orlando attorney Glen Wieland, chair of the Bar’s Workers’ Compensation Section, said some workers’ comp operations are proceeding, including the ability to file through DOAH’s electronic filing system.

“Mediations are all being done by phone, we are able to get mediations done,” he said. “Live trials are a little bit different because it’s kind of difficult for judges to see people.”

There’s also concern about doing things like online depositions because of security concerns with programs like Zoom, Wieland said, adding, “Taking a claimant’s deposition, you’re probably going to get all the information you need to create a false identity.”

Attorneys and staff at his office are working from home and mostly electronically, although some paperwork is still needed, and the office has a bucket for clients to drop off necessary paperwork without coming inside.

While legal colleagues doing wills, trust, powers of attorney, and health-care surrogate forms are seeing a rush of business, Wieland said workers’ compensation claims are likely to slow. Disney World and other attractions in the Orlando area are closed, with tens of thousands of employees laid off. He still sees workers at large construction projects, but isn’t sure if there are as many as before the crisis and many smaller home renovation and other projects have been stopped.

“It’s a very, very different time and I think a lot of people are getting a little big stir crazy and panicky. I’ve talked with a lot of my clients who are extremely worried about what’s going to happen, although their checks are still being issued,” Wieland said. “Everything is getting pushed back. We’ll get through this, but I think it’s going to change the way we all live forever.”

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